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Show HAWAII 245 In order for jurisdiction to attach under this statutory adjudica- tion procedure, there must be an actual controversy between users. That is, a water user cannot simply ask the court to quiet title to a certain quantity of water in an ex parte manner.6 While the com- missioner (judge) is entitled to visit the locality of the controversy, his decision awarding a water right to a user must be based upon competent evidence.7 Since much of Hawaii's water law is based upon ancient custom, there is a general absence of written records defining individual rights. Therefore, it at times becomes necessary to prove the nature and extent of a right by the testimony of "old-timers," and this testimony is accorded great weight.8 The decision of a commissioner is only binding upon the parties to the action and not upon other users from the stream system.9 It is not the purpose of these individual proceedings to settle all of the various rights from the system in a single action, as is the purpose of the statutory adjudication procedure which exists in most of the western states. However, the Hawaii court has stated that even though an earlier decision by a commissioner is not binding upon users who were not involved in the action, nevertheless, insofar as possible, the prior decision should be given effect in subsequent pro- ceedings between other users, particularly if it was decided at a time when the testimony of old-timers was available.10 A decision of a commissioner may be appealed to the Hawaii Su- preme Court,11 but no factual determinations will be distributed if they are supported by substantial evidence.12 However, the statute does permit the court to allow the introduction of new evidence which with due diligence could not have been obtained prior to the hearing before the commissioner.13 The statutory procedure discussed above is not the exclusive manner in which a water right controversy may be settled. A judge of a circuit court has jurisdiction in equity to hear water rights disputes.14 With regard to judgments and decrees in water right controver- sies, the statute provides that the commissioners shall state the time of use and other details necessary to define the water right.15 The Hawaii Supreme Court has announced that the actual extent of the right should be determined and, if possible, a quantitative deter- mination of the right should be made.16 Where sustained by ancient custom, awards by time or rotation have been made.17 In other situations, existing methods of apportionment and distribution have been preserved by decree to prevent injury to other users.18 Also, 0 Davis v. AJong, 5 Haw. 216 (1884) ; Palolo Land & Improvement Go. v. Territory of Hawaii, 18 Haw. 30 (1906). 7Wailuku Sugar Co. v. Widemann, 6 Haw. 185 (1876). 8 Palolo Land Improvement Co. v. Wong Quai, 15 Haw. 554 (1904). 9 Appeal of A. 8. Gleghorn, 3 Haw. 216 (1870). 10Palolo Land Improvement Co. v. Wong Quai, 15 Haw. 554 (1904). 11 Hawaii Rev. Stat., sec. 664-36. lsHUo Boarding School v. Territory of Hawaii, 23 Haw. 595 (1917). 18 Hawaii Rev. Stat., sec. 664-36. i*McBryde Sugar Co. v. Koloa Sugar Co., 19 Haw. 106 (1908). 15 Hawaii Rev. Stat., sec. 664-34. w Carter v. Territory of Hawaii, 24 Haw. 47 (1917). 17 IAliuokalani v. Pang Sam, 5 Haw. 13 (1883). 1BWailuku Sugar Co. v. Hale, 11 Haw. 475 (1898) ; Yick Wai Co. v. Ah Soong, 13 Haw. 378 (1901). |